John O'Connell v The Taxing Master (Paul Behan)

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 06 October 2021
• Neutral Citation: [2021] IECA 255
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2020/275

Between

John O'Connell

Applicant/Appellant

and

The Taxing Master (Paul Behan)

and

The Courts Service

and

The Minister for Justice, Law and Equality; The Attorney General and Ireland

Respondents

[2021] IECA 255

Whelan J.

Murray J.

Pilkington J.

Court of Appeal Record No. 2020/275

High Court Record No. 2019/717J

THE COURT OF APPEAL

CIVIL

Taxation of costs – Recusal – Costs – Parties seeking costs – Whether the applicant was successful on an issue

Facts: The Court of Appeal (Murray J), in a judgment of 1 July 2021 ([2021] IECA 186), explained why the applicant, Mr O’Connell, had failed to establish any error in the decision of the trial Judge not to grant the applicant’s application for leave to seek judicial review of a ruling of the first respondent, the Taxing Master, refusing to recuse himself from further involvement in the taxation of costs in certain proceedings between the applicant and the Building and Allied Trades Union. Murray J reached the same conclusion insofar as the applicant had sought to challenge the vires of Order 99 Rules 38(1), (2), and (3) of the Rules of the Superior Courts. Murray J said that it was his provisional view that, the appeal having been dismissed, the costs of the third to fifth respondents, the Minister for Justice, Law and Equality, the Attorney General and Ireland, should be borne by the applicant. The applicant urged the Court to make an order for costs in his favour or to make no order for costs. He said that he was successful on an issue, in particular insofar as he had contended that there was no order by the High Court to put a party on notice and the Court had set out that the applicant could join a notice party after the leave stage, or it was not obliged to have all parties on notice at the leave stage. The applicant argued that the appointment of a decision maker, the Taxing Master, with connections and conflicts of interest in that area of the Courts Service raised serious concern, was a matter of public importance and had created bias. He stated that his appeal was justified on the basis that it was only the public and litigants who provided any scrutiny as to the decision-making process by the Minister for Finance as to these types of appointments. The third, fourth and fifth respondents applied for an order for the costs of the appeal to be adjudicated in default of agreement. They stated that the outcome of the appeal could not be clearer and that in light of the unequivocal nature of the Court’s decision, they had been entirely successful in their opposition to the appeal. They said that there were no special reasons to depart from the normal rule in the circumstances.

Held by Murray J that it was clear that the applicant was not successful on any issue. Murray J noted that it was not disputed that there was no order by the High Court to put a party on notice. Murray J found that there was no issue of public importance such as would justify the court in departing from the normal rule. Murray J found that having regard to the matters explained by the Taxing Master in his decision, the applicant had failed to establish an arguable case of bias. In Murray J’s judgment he made no decision as to how or why the applicant perceived that he was required to agitate an issue of bias under those provisions of the Rules he sought to impugn.

Murray J held that the Court should make an order for costs against the applicant in favour of the respondents and a stay should be placed on that costs order in the event of...